Devil is in the detail of fisheries agreement

By Tsai Mon-han and Chen I-chung 蔡孟翰，陳宜中

After 17 years of fishery talks, including discussion regarding the waters surrounding the Diaoyutai Islands (釣魚台), Taiwan and Japan signed a fisheries agreement on April 10. The general perception is that Japan signed the agreement because it was worried that Taiwan might cooperate with China over the Diaoyutais. However, there are three main reasons why the negotiations were concluded so quickly.

First, the US did not want a Taiwanese-Japanese dispute over the Diaoyutais to affect its “pivot” toward Asia, so it wanted a quick solution.

Second, Japanese Prime Minister Shinzo Abe’s diplomacy clearly focuses on constraining China. In recent years tensions have risen between Japan and Russia over the ownership of four islands north of Japan, and between Japan and South Korea over Dokdo/Takeshima islets after former South Korean president Lee Myung-bak visited Dokdo. Japan’s relations with Taiwan and China have also deteriorated as a result of the Diaoyutais issue. Abe was eager to break the deadlock, so he attempted to resolve the dispute with Taiwan as a first.

Third, in September last year, President Ma Ying-jeou (馬英九) visited Pengjia Islet (彭佳嶼) in order to claim sovereignty over the Diaoyutais, but he did not state clearly that Taiwan would not cooperate with China to protect the Diaoyutais until February. This made Japan uneasy as it felt that Taiwan might become a problem if Tokyo did not improve its relations with Taipei.

The agreement does not look like a result of bilateral talks, but rather like a simplified version of the Sino-Japan fisheries agreement that came into effect in 2000. However, several differences can be found.

First, Japan’s agreement with China includes detailed rules for its implementation. Such rules are absent from the agreement with Taiwan.

Second, the initial validity of the agreement with China is five years. There is no such initial validity period in the agreement with Taiwan and either side can withdraw after giving six months notice. Since Japan controls the waters around the Diaoyutais, it retains the upper hand.

Third, the area covered by the agreement with China is much larger than the area covered by the agreement with Taiwan.

Fourth, the agreement with China states that the agreement does not affect each side’s stance on issues involving the UN Convention on the Law of the Sea and this refers to controversy over the demarcation of marine territory claimed by both Beijing and Tokyo. This article appears almost verbatim in the agreement with Taiwan, but it is questionable if it will help Taiwan’s sovereignty claim over the Diaoyutais.

Fifth, after the agreement with China was signed in 1997, then-Japanese foreign minister Keizo Obuchi sent a letter to Beijing stating that his country would not apply Japanese law to “Chinese citizens” in the waters surrounding the Diaoyutais. This is evidence that Japan recognizes the sovereignty dispute over the Diaoyutais. However, in Taipei’s agreement with Tokyo, Article 2 strictly states that Japan will not apply Japanese law to “Taiwanese fishermen,” implying that the agreement tacitly grants Japan sovereignty over the Diaoyutais.

Ma’s government claims that the agreement will protect Taiwan’s fishing rights, but Japan can withdraw from the agreement in just six months. Unless Japan recognizes the existence of a sovereignty dispute, Taiwan’s hopes of using the agreement to shelve the sovereignty dispute is wrongheaded.